On December 15, 2012, the federal government’s repeal of the mandatory retirement exemption in the Canadian Human Rights Act came into effect, completing, with notable exceptions, the nation-wide ban of mandatory retirement that commenced with repeal legislation introduced in Manitoba and Quebec in the 1970’s.

The federal sector was the last jurisdiction to eliminate mandatory retirement.

Despite this milestone, there remain at least two examples of legislated age discrimination. The province of New Brunswick still permits mandatory retirement to be stipulated in a “bona fide” pension plan—i.e. affecting a large proportion of the province’s workforce.

Ontario’s generalized repeal of mandatory retirement came into effect on December 12, 2006 and Ontario was hailed as a leader in combating age discrimination Yet, quietly, in 2011 Ontario re-implemented mandatory retirement for fire fighters who are again required to retire at age 60 regardless of their ability to perform the job. They could have a corporate policy setting a different age but if not, the age is 60. Not all firefighters though; voluntary and part-time firefighters can carry on as long as they wish despite facing the same perils in the fires they suppress.

One of the fundamental premises underlying human rights laws is that ability to perform a job should be assessed on an individual basis, not on the basis of stereotypical assumptions related to classes of individuals, such as older workers.

Regardless of age, however, in order to be able to hold a job, one must be able to actually perform the job. Consequently, even with the elimination of mandatory retirement based on age alone, all jurisdictions still permit termination if the employee does not comply with a bona fide occupational requirement, or BFOR. For example, to work as an airline pilot, one must be properly licensed and medically qualified to perform the job. A bona fide occupational requirement permits employers to exclude those who do not meet the job performance requirements.

The essential debate has been whether age alone is a bona fide occupational requirement or whether people must be judged individually on their ability to fulfill legitimate job requirements such as knowledge or physical ability regardless of age.

The requirement as to what actually constitutes a BFOR was set out by the Supreme Court of Canada in a 1999 decision known as Meiorin. The employer must establish (1) that the requirement was rationally connected to the performance of the job; (2) that the employer honestly and in good faith believed that the impugned standard, in this case, mandatory retirement based on age, is necessary to satisfactory performance of the job—the so-called bona fides requirement; and (3) that the employer accommodated employees with disabilities and/or medical restrictions up to the point of “undue hardship”— the employer must adapt the workplace to facilitate the employment of all individuals, unless the hardship caused to the employer by doing so would exceed its reasonable ability to operate its business.

Fire fighters can be terminated based on medical fitness and the risk factors normally associated with age. Many also have a specific age restriction but the specific age and enforcement of the age restriction varies widely from jurisdiction to jurisdiction, city to city and employer to employer. Perhaps local fire chiefs recognized that the fire fighters could still do their jobs. However, instead of removing the age restrictions that were not being observed in some cases, some interest groups including unions and municipalities lobbied the Ontario government to go the other way – which it did in 2011 by amending the Fire Protection and Prevention Act to re-introduce mandatory retirement for all fire fighters in Ontario.

Eian Gill, a Hamilton, Ontario fire fighter who was force-retired by the City of Hamilton at age 60 in 2010, filed a complaint with the Human Rights Tribunal of Ontario (HRTO) alleging that his termination of employment based on age was discriminatory. In addition, in anticipation of being awarded reinstatement of employment, he also filed a Notice of Constitutional Question challenging the constitutionality of the revised Ontario legislation.

His former union, the Hamilton Professional Firefighters’ Association, International Association of Firefighters, Local 288, actually opposed his application and called on the Tribunal to dismiss the application. The union argued that a 2008 decision of the Tribunal had held that there was no medical test available that could sufficiently measure the risk of a cardiovascular event—so an arbitrary age cut-off was justified. The union also argued that since the issue had been recently litigated, there was no need for a new hearing in the case of Mr. Gill.

In the 2008 HRTO case, Espey v. The City of London, the complaint was earlier dismissed following extensive expert medical testimony on behalf of both the Complainant and the Respondents concerning the risk of a cardiovascular event occurring during a fire fighting emergency. The Tribunal in Espey concluded:

“The risk of an on-the-job cardiac event during emergency response is particularly high. There are particular factors about the occupation of firefighters that lead to an exceptionally elevated risk. While methods of individual testing are more accurate than age in the population at large, there exists no scientific research about whether such risk analysis can be done for firefighters, given the particular risks they face.”

In other words, an arbitrary blanket age cut-off was sufficient for the HRTO to conclude that termination of employment was justified, with no requirement on the part of the employer to test individual fire fighters for cardiac fitness, before or after age 60, and no requirement for the employer to accommodate the individuals’ working conditions so as to minimize the inherent risk that any cardiovascular event would jeopardize the safety of the workers or the public.

The Gill case presented two issues distinct from the Espey case. First, whereas Mr. Espey had agreed to be bound by the findings of the evidence without undergoing an individual medical assessment, Mr. Gill was fully prepared to undergo a personal cardiovascular fitness test, arguing that his fitness was higher than several other workers who were under age 60 who were therefore not subjected to fitness testing.

Second, unlike in the earlier case, the City of Hamilton employs two separate classifications of fire fighters—Mr. Gill’s group, whose collective agreement requires mandatory retirement at age 60, and a second group, volunteer fire fighters whose collective agreement permits them to work beyond age 60.

The Meiorinbona fides requirement step of the BFOR test mandates that the employer demonstrate that it “adopted the particular standard [mandatory retirement] with an honest and good faith belief that it was necessary to the accomplishment of its purpose, with no intention of discriminating against the claimant …”

Mr. Gill argued that the employer could not meet the requirements of that test, given that the City did not impose the same standard on the second group of fire fighters that it employs.

The HRTO, in its decision released August 1st, 2012, dismissed Mr. Gill’s complaint, saying first that the complaint had no reasonable prospect of establishing a different outcome than the Espey decision, and second, that the terms and conditions of the collective agreements of the two City of Hamilton fire fighter unions differed in regard to the percentage of fires that the full-time fire fighters, as opposed to the volunteer fire fighters must attend, distinguishing those who must retire at age 60 from those who are not required to retire at age 60.

Of course, one might properly ask oneself, “What do the terms and conditions of a collective agreement with regard to job attendance have to do with the ability to safely perform the job?” In fact, that is a question that could have been put before a Court, if the decision of the HRTO had been appealed.

But therein lies one of the fundamental problems facing all who seek a full determination of their legal rights. This is known as the “access to justice” problem—who can afford to fight not only City Hall, but one’s own union, through multiple levels of Tribunal and court proceedings in order to obtain a timely, effective resolution of one’s human rights complaint? And at what cost, in terms of both time and money?

The Air Canada Vilven-Kelly pilots case that is currently before the Supreme Court of Canada (on an application for leave to appeal) is a case in point. The individual pilots who opposed mandatory retirement succeeded in taking their case through multiple judicial reviews and appeals to finally arrive at the Supreme Court of Canada only because they joined together, financially supporting one another, to engage in the legal fight against not only their employer, but against their own union that appeared before the Tribunal and the courts in support of the employer’s forced retirement of its own members.

That fight has not only cost hundreds of thousands of dollars, but it has now taken over six years to get a final decision. Regardless of the outcome, the inescapable conclusion is that as a result of the delays, the majority of those pilots will never be able to regain employment in the capacity in which their employment was terminated. Justice delayed is justice denied.

Meanwhile, the Ontario fire fighter’s struggle to be granted competency testing on an individual by individual basis so as to eliminate the arbitrary termination of employment on the basis of age remains for another individual or group of individuals to carry forward on another day. Final score: City Hall 1, fire fighter 0.

- Raymond D. Hall, is lead counsel for the Vilven-Kelly pilots’case and founder of FlyPast60